Townsend v. Hanks

Smith, J.,

dissents in a memorandum as follows: I dissent because service was not properly made pursuant to CPLR 308 (2). That section reads, in part, as follows:

"Personal service upon a natural person shall be made by any of the following methods * * *
"2. by delivering the summons within the state to a person *164of suitable age and discretion at the actual place of business, dwelling place or usual place of abode of the person to be served and by * * * mailing the summons to the person to be served at his last known residence”.

In this case it is undisputed that the process server left a summons and complaint on the desk of the telephone operator at the offices of defendant Goldome Bank where defendant Hanks was employed. Subsequently, a summons and complaint were mailed not to the residence of defendant Hanks in Amityville, New York, but to his post-office box in North Wantagh, New York. This mailing to a post-office box did not comply with CPLR 308 (2). A residence is defined as a place in which a person resides or a dwelling place or abode (Chalk v Catholic Med. Center, 58 AD2d 822, 824 [2d Dept 1977]). This case falls squarely within the admonition of the Court of Appeals that the receipt of actual notice of a suit does not cure a defect "since notice received by means other than those authorized by statute cannot serve to bring a defendant within the jurisdiction of the court” (Feinstein v Bergner, 48 NY2d 234, 241 [1979]).